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DRAFT: August 2014 February 2017 – Phase 3 Single Metering tracked
DATED [●]
[ ]
(as the GENERATOR)
and
LOW CARBON CONTRACTS COMPANY LTD
(as the CFD COUNTERPARTY)
_______________________________________________________
CFD (PHASE 3) AGREEMENT
RELATING TO [name of Project]
_______________________________________________________
520541435
DRAFT: August 2014 February 2017 – Phase 3 Single Metering tracked
CONTENTS
1. Definitions and interpretation 1
2. Agreement 4
3. Term 5
4. Generation Technology Type 5
5. Conditions Precedent and Milestone 6
6. Adjustments to Installed Capacity Estimate and Required Installed Capacity 7
7. Changes in Law 10
8. Payment Calculations: Strike Price 11
9. Balancing System (BSUoS/RCRC) and TLM(D) 11
10. Curtailment 11
11. Termination 11
12. Transfers 12
13. Pro Forma Notices 13
14. Notices 13
15. Agent for Service of Process 1314
Annex 1 (Description of the Facility) 15
Annex 2 (Modification Agreement) 16
Annex 3 (Turbine Reallocation Notice) 17
Annex 4 (Phasing RCE-Adjustment Notice) 19
Annex 5 (Phasing RCE-Adjustment Response Notice) 20
Annex 6 (Novation Agreement) 21
DRAFT: August 2014 February 2017 – Phase 3 Single Metering tracked
THIS CFD (PHASE 3) AGREEMENT is dated [●] (the “Agreement Date”) and made between:
(1) [●] (the “Generator”); and
(2) LOW CARBON CONTRACTS COMPANY LTD, a company incorporated under the
laws of England and Wales whose registered office is Fleetbank House, 2-6 Salisbury
Square, London EC4Y 8JX and whose company number is 08818711 (the “CfD
Counterparty”).
BACKGROUND
(A) This CfD (Phase 3) Agreement is entered into following the applicable contract
allocation or negotiation process established under or by virtue of the EA 2013. It
relates to the third phase of a Phased Project and separate agreements are also
entered into on or about the date of this agreement in respect of the other phases of
such Phased Project.
(B) Project Company 1 has satisfied the relevant Eligibility Criteria in relation to the Phased
Project.
(C) The CfD Counterparty is a company wholly owned by the UK Government and is
entering into this CfD (Phase 3) Agreement solely for the purpose of implementing the
provisions of the EA 2013.
(D) This CfD (Phase 3) Agreement is a CfD Agreement for the purpose of the Conditions.
(E) This CfD (Phase 3) Agreement, together with the terms and conditions set out in version
12 of the document entitled “FiT Contract for Difference Standard Terms and Conditions”
as at 29 August 2014,[date], constitute an agreement entered into on “standard terms”
(as defined in section 11(1) of the EA 2013).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this CfD (Phase 3) Agreement and its recitals:
“Agreement Date Provisions” means Part 1 (Introduction), Part 2 (Term), Part 3
(Conditions Precedent and Milestone Requirement), Condition 8 (Application), Condition
9 (Definitions: Part 5A), Condition 14 (Strike Price Adjustments), Condition 16
(Application), Condition 17 (Definitions: Part 5B), Condition 20 (Strike Price
Adjustments), Condition 24 (Default Interest), Condition 25 (Set-off), Condition 26
(Deductions and withholdings), Condition 27 (Payment accounts), Condition 28
(Generator representations and warranties), Condition 29 (CfD Counterparty
representations and warranties), Condition 30 (Generator undertakings: General),
Condition 32 (Generator undertakings: Information provision and no cumulation of State
aid), Part 12 (Termination), Part 14 (Dispute Resolution) to Part 17 (Miscellaneous)
(inclusive), Schedule 1 (Conditions Precedent), Annex 1 (Calculation of Termination
Amount), Annex 2 (Change Control Procedure), Annex 3 (Form of Direct Agreement),
Annex 7 (FMS arrangements, Sustainability Criteria and RQM Calculation
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Methodology), Annex 8 (Pro forma notices), Clauses 6.5 to 6.7 and Clause 12
(TransfersTransfers);
“CfD (Phase 1) Agreement” means a Contract for Difference between Project
Company 1 and the CfD Counterparty entered into on or about the date of this CfD
(Phase 3) Agreement in relation to the first phase of the Phased Project;
“CfD (Phase 2) Agreement” means a Contract for Difference between Project
Company 3 and the CfD Counterparty entered into on or about the date of this CfD
(Phase 3) Agreement in relation to the second phase of the Phased Project;
“CfD Standard Terms Notice” means a notice issued pursuant to regulation 9 of the
Contracts for Difference (Standard Terms) Regulations 2014 (as amended);
“Conditions” means the terms and conditions set out in version 12 of the document
entitled “FiT Contract for Difference Standard Terms and Conditions” as at 29 August
2014[date] (as amended, modified, supplemented or replaced by this CfD (Phase 3)
Agreement and as may be amended, modified, supplemented or replaced from time to
time in accordance with the Conditions);
“Facility” means the generating facility comprising:
(A) all assets (including all Generating Units but excluding all assets forming part of
an Electricity Storage Facility):
(i) which are used (or intended to be used) to generate or deliver
electricity;
(ii) which were taken into account by the Generator in determining the
Initial Installed Capacity Estimate; and
(iii) which are (except as otherwise agreed in writing by the CfD
Counterparty) situated (subject to paragraph (d)) within the area shaded
on the map provided pursuant to paragraph (C)(ii) of Part A of Schedule
1, and which has the geographical coordinates specified in Annex 1
(Description of the Facility),
adjusted where the context requires to take due account of any changes to the
composition of such assets arising as a result of, or giving rise to:
(a) any reduction to the Installed Capacity Estimate pursuant to Condition 5
(Adjustment to Installed Capacity Estimate: Relevant Construction
Event);
(b) any adjustment to the Installed Capacity Estimate pursuant to Condition
6 (Adjustment to Installed Capacity Estimate: Permitted reduction);
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(c) the agreement or determination of the Final Installed Capacity pursuant
to Condition 7 (Final Installed Capacity; Maximum Contract Capacity);
and
(d) any turbine reallocation pursuant to Clause 6.5; and
(B) all assets owned by the Generator and comprised or to be comprised within the
Offshore Transmission System of such generating facility except for the
purposes of:
(i) in Condition 1.1, the definitions of “Competent Authority”,
“Curtailment”, “Defined Curtailment Compensation”, “Defined
Partial Curtailment Compensation”, “Discriminatory Change in
Law”, “Eligibility Criteria”, “Foreseeable Change in Law”,
“Generation Tax Liability”, “Partial Curtailment”, “QCiL Capital
Costs”, “QCiL Capital Savings”, “QCiL Construction Event”, “QCiL
Construction Event Costs”, “QCiL Operations Cessation Event”,
“Qualifying Curtailment”, “Qualifying Partial Curtailment”,
“Qualifying Shutdown Event”, “Required Authorisation” and
“Specific Change in Law”;
(ii) Conditions 28.2(A), 30.1(E), 31.13, 36.1, 48.2 and 50.1; and
(iii) paragraph 9.3 of Annex 3 (Form of Direct Agreement) to the Conditions,
and otherwise excluding all other assets forming part of the Transmission
System or a Distribution System;
“Group Company” means, in respect of the Generator, any Wholly-owned Subsidiary of
the Generator, any company of which the Generator is a Wholly-owned Subsidiary (a
“Parent Company”) and any other Wholly-owned Subsidiary of any Parent Company;
“Initial CP Provisions” means Part 4 (Adjustments to Installed Capacity Estimate) and
Clause 6.4 and Clauses 6.8 to 6.11, Part 8 (Changes in Law), Part 9 (Generation Tax),
Part 10 (Balancing System (BSUoS/RCRC) and TLM(D)), Part 11 (Curtailment), Annex
4 (BMRP) and Annex 5 (IMRP);
“Phase 1 Installed Capacity Estimate” has the meaning given to the term “Installed
Capacity Estimate” in the CfD (Phase 1) Agreement;
“Phase 1 RCE Reduction Amount” has the meaning given to that term in Clause
6.8(A).
“Phase 1 Start Date” has the meaning given to the term “Start Date” in the CfD
(Phase 1) Agreement;
“Phase 1 Target Commissioning Window” has the meaning given to the term “Target
Commissioning Window” in the CfD (Phase 1) Agreement;
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“Phase 1 Turbine Reallocation Deadline” has the meaning given to that term in
Clause 6.5(A)(i);
“Phase 2 Installed Capacity Estimate” has the meaning given to the term “Installed
Capacity Estimate” in the CfD (Phase 2) Agreement;
“Phase 2 RCE-Increased Installed Capacity Estimate” has the meaning given to that
term in Clause 6.9(B)(iii);
“Phase 2 RCE Reduction Amount” has the meaning given to that term in Clause
6.8(B);
“Phase 2 Target Commissioning Window” has the meaning given to that term in the
CfD (Phase 2) Agreement;
“Phase 2 Turbine Reallocation Deadline” has the meaning given to that term in
Clause 6.5(A)(ii);
“Phase 3 RCE-Increased Installed Capacity Estimate” has the meaning given to that
term in Clause 6.9(B)(iii);
“Phased Project” means an offshore wind electricity generation project consisting of
the Project and at least one other phase, the Project and each such other phase
having(as defined in the CfD (Phase 1 Agreement) and the Project (as defined in the
CfD (Phase 2) Agreement, each of which has a separate Ttarget Ccommissioning
Ddate, and for which a joint application for a Contract for Difference has been submitted
to the Delivery Body;
“Project Company 1” means [legal name of company];
“Project Company 2” means [legal name of company];
“RCE Increase Amount” has the meaning given to that term in Clause 6.9(B)(iii); and
“Wholly-owned Subsidiary” has the meaning given to it in section 1159(2) of the
Companies Act 2006.
1.2 Except as expressly specified in this CfD (Phase 3) Agreement, words and expressions
defined in the Conditions shall have the same meanings when used in this CfD (Phase
3) Agreement. Where a term is defined both in this CfD (Phase 3) Agreement and in the
Conditions, the definition in this CfD (Phase 3) Agreement shall apply instead of the
definition in the Conditions.
2. AGREEMENT
The Generator
2.1 The Generator shall, as from the Agreement Date, comply with this CfD (Phase 3)
Agreement (including the Conditions) as the “Generator” and agrees that the
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Conditions are hereby incorporated into this CfD (Phase 3) Agreement as if they were
clauses of this CfD (Phase 3) Agreement.
The CfD Counterparty
2.2 The CfD Counterparty shall, as from the Agreement Date, comply with this CfD (Phase
3) Agreement (including the Conditions) as the “CfD Counterparty” and agrees that the
Conditions are hereby incorporated into this CfD (Phase 3) Agreement as if they were
clauses of this CfD (Phase 3) Agreement.
Specific terms
2.3 [The Parties have agreed to amend the Conditions as set out in Annex 2 (Modification
Agreement).]1
2.4 The Parties agree that, for the purposes of this Contract for Difference, the Conditions
shall be amended, modified, supplemented or replaced in accordance with the terms of
this CfD (Phase 3) Agreement.
3. TERM
The “Specified Expiry Date” applicable to this Contract for Difference is the 15th
anniversary of the earlier of the Start Date and the last day of the Target Commissioning
Window.
4. GENERATION TECHNOLOGY TYPE
Facility Generation Technology
4.1 The Facility Generation Technology applicable to this Contract for Difference is Offshore
Wind, provided that for the purposes of paragraph (A) of the definition of Specific
Change in Law or paragraphs (B) or (C) of the definition of Other Change in Law,
Offshore Wind and Onshore Wind may be deemed to be one Facility Generation
Technology.
4.2 The Facility Generation Technology is an Intermittent Technology and accordingly:
(A) Part 5B (Payment calculations: Intermittent Technologies) to the Conditions
shall apply to this Contract for Difference;
(B) Annex 5 (IMRP) to the Conditions shall apply to this Contract for Difference; and
1 Drafting note: Clause to be retained only if specific amendments to any given Contract for Difference are agreed to be
made pursuant to Part 3 of The Contract for Difference (Standard Terms) Regulations 2014 (as amended).
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(C) in this Contract for Difference, “Settlement Unit” means each hour in a day
divided into hour-long periods starting at 00:00 on such day.
Renewable Qualifying Multiplier
4.3 The Renewable Qualifying Multiplier shall not apply to this Contract for Difference.
CHP Qualifying Multiplier
4.4 The CHP Qualifying Multiplier shall not apply to this Contract for Difference.
Fuelling Criteria
4.5 There are no Fuelling Criteria applicable to this Contract for Difference.
Sustainability Criteria
4.6 The Sustainability Criteria do not apply to this Contract for Difference.
5. CONDITIONS PRECEDENT AND MILESTONE
Interpretation
5.1 The “Initial Target Commissioning Window” applicable to this Contract for Difference
shall be one year, such period commencing on [insert date]2.
5.2 The “Target Commissioning Date” applicable to this Contract for Difference shall be
[●]3.
5.3 The “Longstop Period” applicable to this Contract for Difference shall be two (2) years.
Further Conditions Precedent
5.4 The following shall be added as additional Further Conditions Precedent applicable to
this Contract for Difference after paragraph 2.5 6 of Part B (Further Conditions
Precedent) of Schedule 1 (Conditions Precedent) to the Conditions:
“2.67. The Generator having delivered to the CfD Counterparty a certified copy of the
Interim Operational Notification issued by the Transmission System Operator
under the Grid Code. For the purpose of this paragraph, pursuant to the
2 Drafting note: This shall be the date notified to the Delivery Body in the Generator’s FiT CfD Application as the start of
the Target Commissioning Window.
3 Drafting note: This shall be the date notified to the Delivery Body in the Generator’s FiT CfD Application as its “Target
Commissioning Date” and will be a date falling within the Initial Target Commissioning Window.
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“Offshore Electricity Transmission: Decision on implementation of the Generator
Commissioning Clause in the Energy Act 2013” dated 2 April 2014, the
reference in this paragraph to the Interim Operational Notification shall be to
ION B.
2.78. (Unless the CfD (Phase 1) Agreement has been terminated prior to the Start
Date pursuant to Condition 51.8 (Qualifying Change in Law termination) of the
CfD (Phase 1) Agreement as a result of the occurrence of a QCiL Construction
Event) the Phase 1 Start Date has occurred.”
5.5 Milestone
5.6 Condition 4 (Milestone Requirement) of the Conditions and the definitions defined
therein will not apply to this Contract for Difference.
5.7 The definition of “Milestone Delivery Date” shall be deleted and replaced by the
following:
““Milestone Delivery Date” means the date of the Milestone Delivery Date applicable to
the CfD (Phase 1) Agreement, unless the CfD (Phase 1) Agreement is terminated prior
to that date pursuant to Condition 51.8 (Qualifying Change in Law termination) of the
CfD (Phase 1) Agreement, in which case it shall be on the same date as the Initial
Milestone Delivery Date, as defined in the CfD (Phase 1) Agreement.”
6. ADJUSTMENTS TO INSTALLED CAPACITY ESTIMATE AND REQUIRED
INSTALLED CAPACITY
Interpretation
6.1 The “Initial Installed Capacity Estimate” applicable to this Contract for Difference is [●]
MW4.
6.2 For the purposes of this CfD (Phase 3) Agreement, the “Installed Capacity Estimate”
shall mean the Generator’s estimate of the Installed Capacity from time to time, being
the Initial Installed Capacity Estimate as may be adjusted pursuant to Condition 5
(Adjustment to Installed Capacity Estimate: Relevant Construction Event), Condition 6
(Adjustment to Installed Capacity Estimate: Permitted reduction) and/or Clause 6.5
(Turbine reallocation) of this CfD (Phase 3) Agreement.
6.3 The “Required Installed Capacity” applicable to this Contract for Difference is 85% of
the Installed Capacity Estimate.
4 Drafting note: This shall be either (a) the capacity notified by the Delivery Body in the Generator’s FiT CfD Application
as the capacity in megawatts, or (b) if the Allocation Round in which the Generator is participating requires them to
submit a sealed bid, then the capacity for which successful allocation has taken plan under the Allocation Round.
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Adjustment to Installed Capacity Estimate: Permitted reduction
6.4 An ICE Adjustment Notice given pursuant to Condition 6.1 of the Conditions shall be
invalid and of no effect unless and until a valid and effective notice has been given to
the CfD Counterparty pursuant to Condition 6.1 of the CfD (Phase 1) Agreement and
the CfD (Phase 2) Agreement, provided that if the CfD (Phase 1) Agreement has been
terminated prior to the Milestone Delivery Date, the ICE Adjustment Notice shall be valid
and effective when a valid notice has been given to the CfD Counterparty pursuant to
Condition 6.1 of the CfD (Phase 2) Agreement.
Turbine reallocation
6.5 The Generator may give a notice to the CfD Counterparty (a “Turbine Reallocation
Notice”). A Turbine Reallocation Notice shall:
(A) be given jointly by:
(i) the Generator, Project Company 1 and Project Company 2 (except any
of them whose Contract for Difference has been terminated) if given
before the first day of the Phase 1 Target Commissioning Window (the
“Phase 1 Turbine Reallocation Deadline”); or
(ii) the Generator and Project Company 3 if given on or after the Phase 1
Turbine Reallocation Deadline but before the first day of the Phase 2
Target Commissioning Window (the “Phase 2 Turbine Reallocation
Deadline”);
(B) constitute a notice given by Project Company 2 under Clause 6.5 of the CfD
(Phase 2) Agreement (a “Phase 2 Turbine Reallocation Notice”) and, if given
by Project Company 1, a notice given by Project Company 1 under Clause 6.5
of the CfD (Phase 1) Agreement (a “Phase 1 Turbine Reallocation Notice”);
(C) specify the proposed reallocation of the offshore wind turbines comprised within
the Facility among this CfD (Phase 3) Agreement, the CfD (Phase 2) Agreement
and (where applicable) the CfD (Phase 1) Agreement from the effective date of
such Turbine Reallocation Notice;
(D) include details of any change in assets comprising the Facility;
(E) if the Generator has provided the CfD Counterparty with a Operational CP
Notice in respect of the Further Conditions Precedent listed at Paragraph 2.1(D)
of Part B of Schedule 1 (Conditions Precedent) prior to the date of the Turbine
Reallocation Notice and there has been a change to the electrical schematic
diagram, include an updated date and time stamped copy of the electrical
schematic diagram, certified as being correct and up-to-date by a director of the
Generator and showing the locations of the Facility Metering Equipment
associated with all assets comprised within the Facility; and
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(F) include such Supporting Information as the Generator considers relevant to
evidence the turbine reallocation.
6.6 Any Turbine Reallocation Notice shall be invalid and of no effect:
(A) if given under Clause 6.5(A)(i) on or after the Phase 1 Turbine Reallocation
Deadline or under Clause 6.5(A)(ii) on or after the Phase 2 Turbine Reallocation
Deadline; or
(B) unless each of the Installed Capacity Estimate, the Phase 1 Installed Capacity
Estimate and the Phase 3 Installed Capacity Estimate in the Turbine
Reallocation Notice is no greater than it was immediately prior to the Turbine
Reallocation Notice.
6.7 Any Turbine Reallocation Notice shall be irrevocable.
Adjustment to Installed Capacity Estimate: Relevant Construction Event
6.8 If,
(A) pursuant to Condition 5 (Adjustment to Installed Capacity Estimate: Relevant
Construction Event) of the CfD (Phase 1) Agreement, the Phase 1 Installed
Capacity Estimate is reduced (the amount of such reduction being the “Phase 1
RCE Reduction Amount”); or
(B) pursuant to Condition 5 (Adjustment to Installed Capacity Estimate: Relevant
Construction Event) of the CfD (Phase 2) Agreement, the Phase 2 Installed
Capacity Estimate is reduced (the amount of such reduction being the “Phase 2
RCE Reduction Amount”),
the CfD Counterparty shall, within five (5) Business Days of such reduction having been
agreed or determined, give a notice to the Generator and, where it relates to a Phase 1
RCE Reduction Amount, to Project Company 2 (a “Phasing RCE-Adjustment Notice”).
A Phasing RCE-Adjustment Notice shall:
(i) be substantially in the form set out in Annex 4 to this CfD (Phase 3)
Agreement (Phasing RCE-Adjustment Notice);
(ii) where it relates to a Phase 1 RCE Reduction Amount, constitute a
notice given to Project Company 2 under Clause 6.8 of the CfD (Phase
2) Agreement; and
(iii) specify the Phase 1 RCE Reduction Amount or Phase 2 RCE
Reduction Amount, as applicable.
6.9 If the CfD Counterparty gives a Phasing RCE-Adjustment Notice pursuant to Clause
6.7, the Generator may, within twenty (20) Business Days of receipt of such Phasing
RCE-Adjustment Notice, give a notice to the CfD Counterparty (a “Phasing RCE-
Adjustment Response Notice”). A Phasing RCE-Adjustment Response Notice shall:
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(A) be substantially in the form set out in Annex 5 to this CfD (Phase 3) Agreement
(Phasing RCE-Adjustment Response Notice); and
(B) where it relates to a Phase 1 RCE Reduction Amount:
(i) be given jointly by the Generator and Project Company 2;
(ii) constitute a notice given by Project Company 2 under Clause 6.8 of the
CfD (Phase 2) Agreement; and
(iii) specify the amounts by which the Installed Capacity Estimate and the
Phase 2 Installed Capacity Estimate will be increased (the sum of such
amounts being the “RCE Increase Amount”) and the Installed Capacity
Estimate and the Phase 2 Installed Capacity Estimate which will apply
once such increases are made (respectively, the “Phase 3 RCE-
Increased Installed Capacity Estimate” and the “Phase 2 RCE-
Increased Installed Capacity Estimate”); or
(C) where it relates to a Phase 2 RCE Reduction Amount:
(i) be given by the Generator; and
(ii) specify the amount by which the Installed Capacity Estimate will be
increased (such amount being the “RCE Increase Amount”) and the
Installed Capacity Estimate which will apply once such increase is made
(the “RCE-Increased Installed Capacity Estimate”).
6.10 Any RCE Increase Amount shall not exceed the Phase 1 RCE Reduction Amount or the
Phase 2 RCE Reduction Amount, as applicable.
6.11 The Phase 3 RCE-Increased Installed Capacity Estimate shall constitute the Installed
Capacity Estimate and, if applicable, the Phase 2 RCE-Increased Installed Capacity
Estimate shall constitute the Phase 2 Installed Capacity Estimate, with effect from the
date of the relevant Phasing RCE-Adjustment Response Notice.
7. CHANGES IN LAW
7.1 The “Assumed Load Factor” applicable to this Contract for Difference is [●]5.
7.2 The “Post-Tax Real Discount Rate” applicable to this Contract for Difference is [●]6.
5 Drafting note: This is to be equal to the “Assumed Load Factor” applicable to the Facility Generation Technology listed in Table J of the CfD Standard Terms Notice issued on 15 August 2014[6 March 2017] by the Secretary of State for Energy and Climate ChangeBusiness, Energy and Industrial Strategy.
6 Drafting note: This is to be equal to the “Post-Tax Real Discount Rate” applicable to the Facility Generation Technology listed in Table K of the CfD Standard Terms Notice issued on 15 August 2014 [6 March 2017] by the Secretary of State for Energy and Climate ChangeBusiness, Energy and Industrial Strategy.
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8. PAYMENT CALCULATIONS: STRIKE PRICE
8.1 The “Base Year” applicable to this Contract for Difference is 2012.
8.2 The “Initial Strike Price” applicable to this Contract for Difference is £[•] per MWh7.
9. BALANCING SYSTEM (BSUOS/RCRC) AND TLM(D)
9.1 Part 10 (Balancing System (BSUoS/RCRC) and TLM(D)) of the Conditions [does not
apply]/[applies] to this CfD Agreement8.
9.2 [The “Initial Balancing System Charge” is £[●] per MWh9.
9.3 The “Initial Balancing System Charge Window” is [●]10.
9.4 [The “Initial TLM(D) Charge” for each calendar year from (and including) the
Agreement Date to the end of the Term is that set out in the CfD Standard Terms Notice
published most recently prior to the date of this Contract for Difference.
10. CURTAILMENT
10.1 Part 11 (Curtailment) of the Conditions applies to this Contract for Difference.11
11. TERMINATION
11.1 Condition 51.1(A) and Condition 51.3 of the Conditions shall not apply to this Contract
for Difference.
11.2 A new paragraph (E) shall be added to Condition 51 (Pre-Start Date Termination) of the
Conditions:
“(E) the CfD (Phase 1) Agreement has been terminated pursuant to any Pre-Start
Date Termination Event pursuant to Condition 51 (Pre-Start Date Termination) of
the CfD (Phase 1) Agreement,”
7 Drafting note: The Initial Strike Price will be provided by the Delivery Body following the Allocation Round.
8 Drafting note: Delete as applicable.
9 Drafting note: This is to be equal to the “Initial Balancing System Charge” applicable to the Facility Generation
Technology listed in Table L of the CfD Standard Terms Notice issued on 15 August 2014 [6 March 2017] by the
Secretary of State for Energy and Climate ChangeBusiness, Energy and Industrial Strategy.
10 Drafting note: This is to be equal to the “Initial Balancing System Charge Window” applicable to the Facility
Generation Technology listed in Table M of the CfD Standard Terms Notice issued on 15 August 2014 [6 March 2017]
by the Secretary of State for Energy and Climate ChangeBusiness, Energy and Industrial Strategy.
11 Drafting note: This will apply in all circumstances in which this agreement applies.
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11.3 Condition 51.12 of the Conditions shall be deleted and replaced with the following
provision:
“51.9 The termination rights in this Condition 51 (Termination) or in the CfD
Agreement are the only rights that either Party has to terminate the Contract for
Difference.”
11.4 A new paragraph (G) shall be added to Condition 53.1 (Termination Events) of the
Conditions:
“(G) the CfD (Phase 1) Agreement has been terminated pursuant to a Termination
Event pursuant to paragraph (D) of Condition 53.1 (Termination Events).”
12. TRANSFERS
12.1 Notwithstanding Condition 79.1 of the Conditions, the CfD Counterparty shall not
withhold its consent to the novation of the rights, benefits, obligations and liabilities of
the Generator under this Contract for Difference provided that:
(A) no Default has arisen and is continuing;
(B) the rights, benefits, obligations and liabilities of the Generator under this
Contract for Difference are transferred to and assumed by a Group Company;
(C) the Generator shall have given to the CfD Counterparty not less than ten (10)
Business Days written notice prior to any such novation specifying the identity
of the relevant Group Company to which it intends to transfer its rights, benefits,
obligations and liabilities and shall have provided such details in relation to that
Group Company as the CfD Counterparty may reasonably request having
received such notification;
(D) the novation relates to all (and not part only) of the rights, benefits, obligations
and liabilities of the Generator under this Contract for Difference;
(E) such novation takes effect prior to the Phase 1 Start Date;
(F) the rights, benefits, obligations and liabilities of the Generator under all other
CfD Documents are also transferred to and assumed by the same Group
Company at the same time;
(G) the Transferee is an Eligible Generator; and
(H) the novation is entered into in the form set out in Annex to this CfD (Phase 3)
Agreement (Novation Agreement)(Novation Agreement), with such amendments
as the CfD Counterparty may agree.
12.2 Where the CfD Counterparty consents to a novation pursuant to Clause 12.1 it shall
enter into a novation agreement in the form described in Clause 12.1(H) with the
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Generator and the Group Company to which the rights, benefits, obligations and
liabilities of the Generator are to be novated.
13. PRO FORMA NOTICES
Where this Agreement permits, or requires, either Party to give a notice to the other
Party and the form of such notice is not set out in Annex 8 (Pro forma notices), such
notice shall be in substantially the form set out in the relevant annex to this Agreement.
The foregoing: (i) shall be without prejudice to the requirement for the relevant notice to
include such content as may be prescribed by the relevant Clause; and (ii) shall apply
only if the form of the notice in respect of the relevant Clause is contained in an annex
to this Agreement.
14. NOTICES
14.1 The address and (where such communication is expressly permitted by email) email
address of each Party for any notice to be given under this Contract for Difference, and
the department or officer (if any) for whose attention the notice is to be made, is:
(A) in the case of the Generator:
Address:
Email address:
For the attention of:
(B) in the case of the CfD Counterparty:
Address:
Email address:
For the attention of:
15. AGENT FOR SERVICE OF PROCESS
15.1 [Condition 87 (Agent for service of process) shall not apply to this Contract for
Difference and there shall be no Service Agent.] /[Condition 87 (Agent for service of
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process) shall apply to this Contract for Difference and the Service Agent shall be [●] of
[●].] 12
12 Drafting note: Delete as applicable. This shall be the agent notified to the Delivery Body in the Generator ’s FiT CfD
Application as its agent for service of process, where the Applicant is not based in England/Wales.
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Annex 1
(Description of the Facility)
[Drafting note: Description of the Facility to be populated using information provided in the [FiT
CfD Application] and to include the unique geographical coordinates of the Facility.]
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Annex 2
(Modification Agreement)
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Annex 3
(Turbine Reallocation Notice)
To: [•] (the “CfD Counterparty”)
[Address]
From: [[•] (“Project Company 1”)]
[•] (“Project Company 2”)
[•] (“Project Company 3”)
[Unique reference number(s): [•]]
Date: [•]
CONTRACT FOR DIFFERENCE – TURBINE REALLOCATION NOTICE
Dear Sirs,
1. We refer to the following agreements between you as the CfD Counterparty and us as
the Generator (the “Agreements”):
(A) [the agreement between the CfD Counterparty and Project Company 1 dated
[•];]
(B) the agreement between the CfD Counterparty and Project Company 2 dated [•];
and
(C) the agreement between the CfD Counterparty and Project Company 3 dated [•].
Terms and expressions defined in or incorporated into the Agreements have the same
meanings when used in this notice.
2. We further refer you to Clause 6.5 of each of the Agreements.
3. This is a Turbine Reallocation Notice.
4. The proposed reallocation of offshore wind turbines among the Agreements is [] and
the effect of this reallocation is:
(A) [Phase 1 Installed Capacity Estimate: [ ];]
(B) Phase 2 Installed Capacity Estimate: [ ]; and
(C) Phase 3 Installed Capacity Estimate: [ ].
5. We enclose evidence of a change in the assets comprising the Facility arising in
connection with this turbine reallocation.
6. We enclose such Supporting Information as we consider relevant to evidence this
reallocation.
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Yours faithfully,
……………………………….
For and on behalf of
[Project Company 1]
Project Company 2
Project Company 3
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Annex 4
(Phasing RCE-Adjustment Notice)
To: [•] [(the “Generator”)]/[(“Project Company 3”)]
[[•] (“Project Company 2”)]
[Unique reference number(s): [•]]
From: [•] (the “CfD Counterparty”)
[Address]
Date: [•]
CONTRACT FOR DIFFERENCE – PHASING RCE-ADJUSTMENT NOTICE
Dear Sirs,
1. We refer to the agreement dated [•] between you as the Generator and us as the CfD
Counterparty [and the agreement between the CfD Counterparty and Project Company
2 dated [•]] (the “Agreement[s]”):
Terms and expressions defined in or incorporated into the Agreement[s] have the same
meanings when used in this notice.
2. We further refer you to Clause 6.8 of the Agreement[s].
3. This is a Phasing RCE-Adjustment Notice.
4. The [Phase 1]/[Phase 2] RCE Reduction Amount is [•].
Yours faithfully,
……………………………….
For and on behalf of
the CfD Counterparty
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Annex 5
(Phasing RCE-Adjustment Response Notice)
To: [•] (the “CfD Counterparty”)
[Address]
From: [•] [(the “Generator”)]/[(“Project Company 3”)]
[[•] (“Project Company 2”)]
[Unique reference number(s): [•]]
Date: [•]
CONTRACT FOR DIFFERENCE – PHASING RCE-ADJUSTMENT RESPONSE NOTICE
Dear Sirs,
1. We refer to the agreement dated [•] between you as the CfD Counterparty and us as the
Generator [and the agreement between you as the CfD Counterparty and Project
Company 2 dated [•]] (the “Agreement[s]”):
Terms and expressions defined in or incorporated into the Agreement[s] have the same
meanings when used in this notice.
2. We further refer you to Clause 6.9 of the Agreement[s].
3. This is a Phasing RCE-Adjustment Response Notice.
4. The [Phase 2 Installed Capacity Estimate will be increased by [•] and the] Phase 3
Installed Capacity Estimate will be increased by [•].
5. The [Phase 2 RCE-Increased Installed Capacity Estimate will be [•] and the] Phase 3
RCE-Increased Installed Capacity Estimate will be [•].
Yours faithfully,
……………………………….
For and on behalf of
[the Generator]/[Project Company 3]
[Project Company 2]
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Annex 6
(Novation Agreement)
THIS NOVATION AGREEMENT (the “Agreement”) is dated [●] and made as a deed
BETWEEN:
(1) [insert name and details of the generator] (the “Transferor”);
(2) [insert name and details of the transferee] (the “Transferee”); and
(3) LOW CARBON CONTRACTS COMPANY LTD, a company incorporated under the
laws of England and Wales whose registered office is 3 Whitehall Place, London SW1A
2AW and whose company number is 08818711 (the “CfD Counterparty”),
(each a “Party” and together the “Parties”).
BACKGROUND
(A) The CfD Counterparty and the Transferor have entered into a contract for difference
dated [●] (the “Contract for Difference”).
(B) The CfD Counterparty has consented to a novation of the Contract for Difference and
the other CfD Documents in favour of the Transferee under clause 11 (Transfers) of the
Contract for Difference.
(C) The parties to the Contract for Difference have therefore agreed that the Contract for
Difference and the other CfD Documents shall be novated to the CfD Counterparty and
the Transferee with effect from the Effective Date, subject to the terms of this
Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement and the recitals:
“CfD Documents” means the Contract for Difference and each of the agreements
entered into between the CfD Counterparty and the Transferor which are listed in Annex
1 to this Agreement;
“Conditions Precedent” means delivery to the CfD Counterparty of the following:
(A) a legal opinion addressed to the CfD Counterparty, in form and content
reasonably satisfactory to the CfD Counterparty, from the legal advisers to the
Transferee confirming that the Transferee:
(i) is duly formed and validly existing under the laws of the jurisdiction of
formation; and
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(ii) has the power to enter into and perform, and has taken all necessary
action to authorise its entry into and performance of, this Agreement;
and
(B) evidence, in form and content satisfactory to the CfD Counterparty, acting
reasonably, of compliance by the Transferee with “know your customer” or
similar identification procedures or checks under all applicable laws and
regulations pursuant to the transactions contemplated by this Agreement; and
(C) if the Generator has provided the CfD Counterparty with a Further CP Notice in
respect of the Further Condition Precedent listed at Paragraph 2.1 of Part B of
Schedule 1 (Conditions Precedent), the CfD Counterparty having received
written confirmation from the CfD Settlement Services Provider that:
(i) it has received the CfD Settlement Required Information which is
required from the Transferee; and
(ii) the Transferee has in place the systems and processes which are
necessary for the continued provision of the CfD Settlement Required
Information; and
“Effective Date” means the date on which the CfD Counterparty notifies the Transferee
that the CfD Counterparty considers that the Transferee has fulfilled the Conditions
Precedent.
1.2 Unless a contrary indication appears:
(A) words and expressions defined, or defined by reference, in the Contract for
Difference have the same meanings in this Agreement and the recitals;
(B) Conditions 1.3 and 1.4(A)-(B) of the Contract for Difference shall apply to this
Agreement; and
(C) any reference in this Agreement to a “Clause” is a reference to a Clause of this
Agreement.
2. CFD COUNTERPARTY RELEASE AND DISCHARGE
With effect from the Effective Date, the CfD Counterparty releases and discharges the
Transferor from all liabilities, duties and obligations of every description, whether
deriving from contract, common law, statute or otherwise, whether present or future,
actual or contingent, ascertained or disputed, owing to the CfD Counterparty and arising
out of or in respect of the CfD Documents.
3. TRANSFEROR RELEASE AND DISCHARGE
3.1 With effect from the Effective Date, the Transferor releases and discharges the CfD
Counterparty from all liabilities, duties and obligations of every description, whether
deriving from contract, common law, statute or otherwise, whether present or future,
23
actual or contingent, ascertained or disputed, owing to the Transferor and arising out of
or in respect of the CfD Documents.
3.2 The Transferor’s obligations under Condition 72 (Confidentiality) of the Contract for
Difference shall continue in effect notwithstanding any other provision of this Agreement.
4. TRANSFEREE ASSUMPTION OF LIABILITIES
With effect from the Effective Date, the Transferee undertakes to assume all the
liabilities, duties and obligations of the Transferor of every description contained in the
CfD Documents, whether deriving from contract, common law, statute or otherwise,
whether present or future, actual or contingent, ascertained or unascertained or
disputed, and agrees to perform all the duties and to discharge all the liabilities and
obligations of the Transferor under the CfD Documents and to be bound by their terms
and conditions in every way as if the Transferee were named in each CfD Document as
a party in place of the Transferor from the date of each such CfD Document.
5. CFD COUNTERPARTY AGREEMENT TO PERFORM
With effect from the Effective Date, the CfD Counterparty agrees to perform all its duties
and to discharge all its obligations under the CfD Documents and to be bound by all the
terms and conditions of the CfD Documents in every way as if the Transferee were
named in each CfD Document as a party in place of the Transferor from the date of
each CfD Document.
6. REPLACEMENT OF TRANSFEROR BY TRANSFEREE
As from the Effective Date, reference to the Transferor (by whatsoever name known) in
each CfD Document shall be deleted and replaced by reference to the Transferee.
7. TRANSFEREE’S REPRESENTATIONS AND WARRANTIES
The Transferee shall on the Effective Date represent and warrant to the CfD
Counterparty that:
(A) as at the Effective Date, the representations and warranties set out at
Conditions 28.1 and 28.2 of the Contract for Difference are, in respect of the
Transferee, true, accurate and not misleading on the basis that references to
the Generator shall be deemed to be references to the Transferee; and
(B) it is an Eligible Generator.
8. CONTINUANCE OF THE CONTRACT FOR DIFFERENCE
It is hereby agreed and declared that the CfD Documents as novated shall continue in
full force and effect and that, as from the Effective Date, the terms and conditions of the
CfD Documents have only changed to the extent set out in this Agreement.
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9. FURTHER ASSURANCE
With effect from the Effective Date, the Parties shall enter into such further agreements
and do all such other things as are necessary to substitute the Transferee for the
Transferor in respect of the rights, benefits, obligations or liabilities that are, or are to be,
the subject of this Agreement and to give effect to any consequential amendments to
the Contract for Difference or any other CfD Document that are necessary to give effect
to this Agreement.
10. CONTRACT (RIGHTS OF THIRD PARTIES) ACT 1999
This Agreement does not create any rights under the Contract (Rights of Third Parties)
Act 1999 enforceable by any person who is not a party to it.
11. VARIATIONS
No variation of this Agreement shall be effective unless it is in writing and is signed by or
on behalf of each of the parties to this Agreement.
12. NOTICES
Any notices to be served on the Transferee pursuant to this Agreement or the Contract
for Difference shall be served in accordance with Condition 80 (Notices) of the Contract
for Difference and to:
Address:
Email address:
For the attention of:
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts and this has the same
effect as if the signatures on the counterparts were on a single copy of this Agreement.
14. GOVERNING LAW AND JURISDICTION
This Agreement and any non-contractual obligations arising out of or in connection with
it are governed by and shall be construed in accordance with the laws of England and
the Parties hereby submit to the exclusive jurisdiction of the courts of England.
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IN WITNESS WHEREOF this Agreement has been executed and delivered as a deed on the
date first stated above.
The TRANSFEROR
EXECUTED and delivered as a DEED by
[name of Transferor]
acting by its director/duly appointed attorney
)
)
)
................................................................
Director/Attorney
in the presence of
Signature: ……………………………………...
Print Name: ……………………………………
Address: ……………………………………….
Occupation: ……………………………………
The TRANSFEREE
EXECUTED and delivered as a DEED by
[name of Transferee]
acting by its director/duly appointed attorney
)
)
)
................................................................
Director/Attorney
in the presence of
Signature: ……………………………………...
Print Name: ……………………………………
Address: ……………………………………….
Occupation: ……………………………………
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The CfD COUNTERPARTY
EXECUTED and delivered as a DEED by
LOW CARBON CONTRACTS COMPANY LTD
acting by its director/duly appointed attorney
)
)
)
................................................................
Director/Attorney
in the presence of
Signature: ……………………………………...
Print Name: ……………………………………
Address: ……………………………………….
Occupation: ……………………………………
27
Annex 1 to Novation Agreement
CfD Documents
[List of other CfD Documents to be inserted here]
28
EXECUTION PAGE
The GENERATOR
SIGNED BY
[name of signatory]
for and on behalf of
[name of the Generator]
)
)
)
)
………………………………………….
(Signature of named signatory)
The CfD COUNTERPARTY
SIGNED BY
[name of signatory]
for and on behalf of
Low Carbon Contracts Company
Ltd
)
)
)
)
………………………………………….
(Signature of named signatory)
URN:14D/310
520541435